Joint Custody in a Divorce

There had been a growing trend, in Ontario, in family and divorce law, over the last few years, for family courts to order joint custody of children. The hope, by some, was that the parenting skills of the parties could be improved with awards of joint custody. The recent Ontario Court of Appeal decision of Kaplanis v. Kaplanis, has tried to put this trend into perspective.

In this decision, the parties were married in 1998 and separated in January 2002. The parties had a daughter who was born in October 2001. At trial, the father requested joint custody and the mother opposed the application, stating that the parties could not communicate without screaming at each other. The trial judge granted the parties joint custody and the mother appealed the order. The appeal court set aside the order of joint custody and the mother was granted sole custody.

The Appeal Court held that certain evidence must be demonstrated. There must be some evidence that demonstrates, that despite the parent’s own strong conflict with each other, the parties can and have cooperated and communicated appropriately with one another. In this case there was evidence to the contrary. There was no expert evidence to help the trial judge determine how a joint custody order would advance the child’s emotional and psychological needs. And the child was too young to communicate her own wishes.

Approximately the same time this case was decided, the Ontario Court of Appeal also ruled on the case of Ladisa v. Ladisa, where the appeal court upheld the trial judge’s order of joint custody. In this case the trial judge had the benefit of hearing the evidence of the Children’s Lawyer who presented the children’s wishes and who recommended joint custody. It was held that the trial judge had heard evidence from third parties with respect to cooperation and appropriate communication between the parties. The trial judge also looked at the history of co-parenting during the marriage. Despite their intense conflict, the parties could and had effectively communicated with each other and placed the interests of their children ahead their own, when required.
     
To summarize, in Ontario joint custody cases, it would appear that the courts will now be looking more closely for evidence from third party. Expert witnesses, can demonstrate that the parties can and have cooperated and communicated appropriately.  And have been able to put aside their own differences and conflict, for the benefit of the children. The lack of historical cooperation and appropriate communication between the parties will greatly limit the success of a joint custody application. The assumption that the granting of joint custody will improve the parenting skills of the parties, will not be a sufficient reason on it’s own to grant joint custody. There must be good cooperation and communication between the parties.